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Moustapha Magassouba v. Warden James N. Cross

November 30, 2010


The opinion of the court was delivered by: Richard J. Holwell, District Judge:


Plaintiff Moustapha Magassouba ("Magassouba") commenced this action pro se on May 16, 2008 against federal employee defendants Kenneth Cho ("Cho"), Ileana Pena ("Pena"), Sharon Fields ("Fields"), Donell Scott ("Scott"), Michael J. Garcia ("Garcia"), and James N. Cross ("Cross") (collectively, the "Federal Defendants") and inmate defendants Goldson Hugh, Thomas Garfield, and Barris Larry (the "Inmate Defendants").

The Court referred the action to Magistrate Judge Henry B. Pitman in an order dated May 14, 2009. In his report and recommendation (the "Report"), dated March 1, 2010, Magistrate Judge Pitman concluded that the Federal Defendants' motion to dismiss should be granted. Magistrate Judge Pitman further recommended that plaintiff's claims against defendant Pena be dismissed with prejudice, that his other claims against the Federal Defendants be dismissed without prejudice, that plaintiff's motion for leave to file a Second Amended Complaint be denied, and that his common-law claims be dismissed as a matter of discretion.

Plaintiff filed objections to the Report on several grounds, claiming that the Report erred by: (1) failing to recognize his claim under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346, and under 42 U.S.C. § 1983; (2) excusing his failure to file grievance with respect to only one claim based on Cross's alleged instruction to him to file an administrative tort claim instead of a grievance; (3) saying that he filed two, not three, administrative tort claims; (4) concluding that he was aware of the grievance process before 2008; (5) concluding that he did not exhaust his administrative remedies before filing this action; (6) denying him leave to amend his complaint as futile; (7) dismissing his claims against Pena; and (8) recommending prudential dismissal of his claims against other inmates. Before filing his objections, however, Magassouba filed another motion for permission to withdraw his Second Amended Complaints dated January 14, 2010 and February 17, 2010 and for leave to amend [52] his complaint.*fn1 For the reasons that follow, the Court adopts the well-reasoned Report in its entirety and DENIES the new motion to amend.


The factual background and relevant procedural history are set forth in the Report. The Court adopts the findings of fact as set forth in the Report and assumes familiarity with the facts as stated therein.


I. Standard of Review

A district court may designate a magistrate judge to hear and determine certain motions and to submit to the court proposed findings of fact and a recommendation as to the disposition of the motions. See 28 U.S.C. § 636(b)(1). Within fourteen days of service of the recommendation, any party may file written objections to the magistrate judge's report. Id. In evaluating the report, the court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.

The district court adopts a Magistrate Judge's report and recommendation when no clear error appears on the face of the record. See Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985). If a party objects to the report and recommendation, however, the court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); see, e.g., Jackson v. Goord, 664 F. Supp. 2d 307, 310 (S.D.N.Y. 2009). "If, however, the party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Silva v. Peninsula Hotel, 509 F. Supp. 2d 364, 366 (S.D.N.Y. 2007) (citations and internal quotation marks omitted).

II. Plaintiff's Objections

A.FTCA Claim

Magoussaba's first objection argues that Judge Pitman should have recognized his FTCA claim because "[t]he complaints did Stated [sic] that MICHAEL J. GARCIA is the United States of America in the caption." (Pl.'s Objections at 5.) The Report anticipated this argument, and the Court agrees with the Report's analysis. Although the First Amended Complaint made a passing reference to "United States, who is Michael J. Garcia," (First Am. Compl. at 3), the Report notes that "Garcia is named as an individual in the caption, in the list of parties that begins plaintiff's complaint, and in plaintiff's affidavit of merit." (Report at 4 n.2; see also Pl.'s Affidavit of Merit ¶ 36.) Thus, the Court agrees with the Report's conclusion that "the reference to 'UNITED STATES who is MICHAEL J. GARCIA' [should be deemed] to refer to the former United States Attorney for this district, Michael J. Garcia." (Report at 4 n.2.) As such, Magoussaba's claims were exclusively directed at federal officers, who are not amenable to suit under either § 1983, which applies to state officers, or the FTCA, which applies to the federal government itself. (See Report at 4 n.2); see also Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994) ("[A] claimant's exclusive remedy for ...

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